Full Text of HB3248 99th General Assembly
HB3248 99TH GENERAL ASSEMBLY |
| | 99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016 HB3248 Introduced , by Rep. Reginald Phillips SYNOPSIS AS INTRODUCED: |
| 720 ILCS 5/24-6 | from Ch. 38, par. 24-6 | 725 ILCS 5/112A-14 | from Ch. 38, par. 112A-14 | 750 ILCS 60/214 | from Ch. 40, par. 2312-14 | 765 ILCS 1030/2 | from Ch. 141, par. 142 |
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Amends the Criminal Code of 2012. Provides that after the disposition of a criminal case or in any criminal case where a final judgment in the case was not entered due to the death of the defendant, and when a confiscated weapon is no longer needed for evidentiary purposes, and when in due course no legitimate claim has been made for the weapon, a weapon transferred to a law enforcement agency may be sold by the law enforcement agency at public auction under the Law Enforcement Disposition of Property Act. Amends the Domestic Violence: Order of Protection Article of the Code of Criminal Procedure of 1963 and the Illinois Domestic Violence Act of 1986. Provides that upon expiration of the period of safekeeping of a firearm of a respondent against whom an order of protection was issued, if the firearms or Firearm Owner's Identification Card cannot be returned to respondent because the respondent cannot be located, fails to respond to requests to retrieve the firearms, or is not lawfully eligible to possess a firearm, upon petition from the local law enforcement agency, the court may order the local law enforcement agency to sell the firearm at public auction under the provisions of the Law Enforcement Disposition of Property Act. Amends the Law Enforcement Disposition of Property Act. Provides that weapons that have been confiscated as a result of having been abandoned or illegally possessed may be sold at public auction under the Act.
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| | A BILL FOR |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Criminal Code of 2012 is amended by changing | 5 | | Section 24-6 as follows:
| 6 | | (720 ILCS 5/24-6) (from Ch. 38, par. 24-6)
| 7 | | Sec. 24-6. Confiscation and disposition of weapons.
| 8 | | (a) Upon conviction of an offense in which a weapon was | 9 | | used or
possessed by the offender, any weapon seized shall be | 10 | | confiscated by the
trial court.
| 11 | | (b) Any stolen weapon so confiscated, when no longer
needed | 12 | | for evidentiary purposes, shall be returned to the person | 13 | | entitled to
possession, if known. After the
disposition of a | 14 | | criminal case or in any criminal case where a final judgment
in | 15 | | the case was not entered due to the death of the defendant, and | 16 | | when a
confiscated weapon is no longer needed for evidentiary | 17 | | purposes, and when in
due course no legitimate claim has been | 18 | | made for the weapon, the court may
transfer the weapon to the | 19 | | sheriff of the county who may proceed to
destroy it, or may in | 20 | | its discretion order the weapon preserved as
property of the | 21 | | governmental body whose police agency seized the weapon, or
may | 22 | | in its discretion order the weapon to be transferred to the | 23 | | Department
of State Police for use by the crime laboratory |
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| 1 | | system, for training
purposes, or for any other application as | 2 | | deemed appropriate by the
Department. A weapon transferred to a | 3 | | law enforcement agency under this Section may be sold by the | 4 | | law enforcement agency at public auction under Section 3 of the | 5 | | Law Enforcement Disposition of Property Act. If, after the | 6 | | disposition of a criminal case, a need still
exists for the use | 7 | | of the confiscated weapon for evidentiary purposes, the
court | 8 | | may transfer the weapon to the custody of the State Department | 9 | | of
Corrections for preservation. The court may not order the | 10 | | transfer of the
weapon to any private individual or private | 11 | | organization other than to return
a stolen weapon to its | 12 | | rightful owner.
| 13 | | The provisions of this Section shall not apply to | 14 | | violations of the Fish
and Aquatic Life Code or the Wildlife | 15 | | Code. Confiscation
of weapons for Fish and Aquatic Life Code | 16 | | and Wildlife Code
violations shall be only as provided in those | 17 | | Codes.
| 18 | | (c) Any mental hospital that admits a person as an | 19 | | inpatient pursuant
to any of the provisions of the Mental | 20 | | Health and Developmental
Disabilities Code shall confiscate | 21 | | any firearms in the possession of that
person at the time of | 22 | | admission, or at any time the firearms are
discovered in the | 23 | | person's possession during the course of hospitalization.
The | 24 | | hospital shall, as soon as possible following confiscation, | 25 | | transfer
custody of the firearms to the appropriate law | 26 | | enforcement agency. The
hospital shall give written notice to |
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| 1 | | the person from whom the firearm was
confiscated of the | 2 | | identity and address of the law enforcement agency to
which it | 3 | | has given the firearm.
| 4 | | The law enforcement agency shall maintain possession of any | 5 | | firearm it
obtains pursuant to this subsection for a minimum of | 6 | | 90 days. Thereafter,
the firearm may be disposed of pursuant to | 7 | | the provisions of subsection (b)
of this Section.
| 8 | | (Source: P.A. 91-696, eff. 4-13-00.)
| 9 | | Section 10. The Code of Criminal Procedure of 1963 is | 10 | | amended by changing Section 112A-14 as follows:
| 11 | | (725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
| 12 | | Sec. 112A-14. Order of protection; remedies.
| 13 | | (a) Issuance of order. If the court finds that petitioner | 14 | | has been
abused by a family or household member, as defined in | 15 | | this Article, an
order of protection prohibiting such abuse | 16 | | shall issue; provided that
petitioner must also satisfy the | 17 | | requirements of one of the following
Sections, as appropriate: | 18 | | Section 112A-17 on emergency orders, Section
112A-18 on interim | 19 | | orders, or Section 112A-19 on
plenary orders.
Petitioner shall | 20 | | not be denied an order of protection because petitioner or
| 21 | | respondent is a minor. The court, when determining whether or | 22 | | not to issue
an order of protection, shall not require physical | 23 | | manifestations of abuse
on the person of the victim. | 24 | | Modification and extension of prior orders of
protection shall |
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| 1 | | be in accordance with this Article.
| 2 | | (b) Remedies and standards. The remedies to be included in | 3 | | an order of
protection shall be determined in accordance with | 4 | | this Section and one of
the following Sections, as appropriate: | 5 | | Section 112A-17 on
emergency orders,
Section 112A-18 on interim | 6 | | orders, and Section 112A-19 on
plenary orders.
The remedies | 7 | | listed in this subsection shall be in addition to other civil
| 8 | | or criminal remedies available to petitioner.
| 9 | | (1) Prohibition of abuse. Prohibit respondent's | 10 | | harassment,
interference with personal liberty, | 11 | | intimidation of a dependent, physical
abuse or willful | 12 | | deprivation, as defined in this Article, if such abuse has
| 13 | | occurred or otherwise appears likely to occur if not | 14 | | prohibited.
| 15 | | (2) Grant of exclusive possession of residence. | 16 | | Prohibit respondent
from entering or remaining in any | 17 | | residence, household, or premises of the petitioner,
| 18 | | including one owned or leased by respondent, if petitioner | 19 | | has a right
to occupancy thereof. The grant of exclusive | 20 | | possession of the residence, household, or premises
shall | 21 | | not affect title to real property, nor shall the court be | 22 | | limited by
the standard set forth in Section 701 of the | 23 | | Illinois Marriage and
Dissolution of Marriage Act.
| 24 | | (A) Right to occupancy. A party has a right to | 25 | | occupancy of a
residence or household if it is
solely | 26 | | or jointly owned or leased by that party, that party's |
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| 1 | | spouse, a
person with a legal duty to support that | 2 | | party or a minor child in that
party's care, or by any | 3 | | person or entity other than the opposing party that
| 4 | | authorizes that party's occupancy (e.g., a domestic | 5 | | violence shelter).
Standards set forth in subparagraph | 6 | | (B) shall not preclude equitable relief.
| 7 | | (B) Presumption of hardships. If petitioner and | 8 | | respondent
each has the right to occupancy of a | 9 | | residence or household, the court
shall balance (i) the | 10 | | hardships to respondent and any minor child or
| 11 | | dependent adult in respondent's care resulting from | 12 | | entry of this remedy with (ii)
the hardships to | 13 | | petitioner and any minor child or dependent adult in
| 14 | | petitioner's care resulting from continued exposure to | 15 | | the risk of abuse (should
petitioner remain at the | 16 | | residence or household) or from loss of possession
of | 17 | | the residence or household (should petitioner leave to | 18 | | avoid the risk
of abuse). When determining the balance | 19 | | of hardships, the court shall also
take into account | 20 | | the accessibility of the residence or household.
| 21 | | Hardships need not be balanced if respondent does not | 22 | | have a right to occupancy.
| 23 | | The balance of hardships is presumed to favor | 24 | | possession by
petitioner unless the presumption is | 25 | | rebutted by a preponderance of the
evidence, showing | 26 | | that the hardships to respondent substantially |
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| 1 | | outweigh
the hardships to petitioner and any minor | 2 | | child or dependent adult in petitioner's
care. The | 3 | | court, on the request of petitioner or on its own | 4 | | motion,
may order respondent to provide suitable, | 5 | | accessible, alternate housing
for petitioner instead | 6 | | of
excluding respondent from a mutual residence or | 7 | | household.
| 8 | | (3) Stay away order and additional prohibitions.
Order | 9 | | respondent to stay away from petitioner or any other person
| 10 | | protected by the order of protection, or prohibit | 11 | | respondent from entering
or remaining present at | 12 | | petitioner's school, place of employment, or other
| 13 | | specified places at times when petitioner is present, or | 14 | | both, if
reasonable, given
the balance of hardships. | 15 | | Hardships need not be balanced for the court
to enter a | 16 | | stay away order or prohibit entry
if respondent has no | 17 | | right to enter the premises.
| 18 | | If an order of protection grants petitioner exclusive | 19 | | possession
of the residence, or prohibits respondent from | 20 | | entering the residence,
or orders respondent to stay away | 21 | | from petitioner or other
protected persons, then the court | 22 | | may allow respondent access to the
residence to remove | 23 | | items of clothing and personal adornment
used exclusively | 24 | | by respondent, medications, and other items as the court | 25 | | directs.
The right to access shall be exercised on only one | 26 | | occasion as the court directs
and in the presence of an |
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| 1 | | agreed-upon adult third party or law enforcement officer.
| 2 | | (4) Counseling. Require or recommend the respondent to | 3 | | undergo
counseling for a specified duration with a social | 4 | | worker, psychologist,
clinical psychologist, psychiatrist, | 5 | | family service agency, alcohol or
substance abuse program, | 6 | | mental health center guidance counselor, agency
providing | 7 | | services to elders, program designed for domestic violence
| 8 | | abusers or any other guidance service the court deems | 9 | | appropriate. The court may order the respondent in any | 10 | | intimate partner relationship to report to an Illinois | 11 | | Department of Human Services protocol approved partner | 12 | | abuse intervention program for an assessment and to follow | 13 | | all recommended treatment.
| 14 | | (5) Physical care and possession of the minor child. In | 15 | | order to protect
the minor child from abuse, neglect, or | 16 | | unwarranted separation from the person
who has been the | 17 | | minor child's primary caretaker, or to otherwise protect | 18 | | the
well-being of the minor child, the court may do either | 19 | | or both of the following:
(i) grant petitioner physical | 20 | | care or possession of the minor child, or both, or
(ii) | 21 | | order respondent to return a minor child to, or not remove | 22 | | a minor child
from, the physical care of a parent or person | 23 | | in loco parentis.
| 24 | | If a court finds, after a hearing, that respondent has | 25 | | committed abuse
(as defined in Section 112A-3) of a minor | 26 | | child, there shall be a
rebuttable presumption that |
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| 1 | | awarding physical care to respondent would not
be in the | 2 | | minor child's best interest.
| 3 | | (6) Temporary legal custody.
Award temporary legal | 4 | | custody to petitioner in accordance with this Section,
the | 5 | | Illinois Marriage
and Dissolution of Marriage Act, the | 6 | | Illinois Parentage Act of 1984,
and this State's Uniform | 7 | | Child-Custody
Jurisdiction and Enforcement Act.
| 8 | | If a court finds, after a hearing, that respondent
has | 9 | | committed abuse (as defined in Section 112A-3) of a
minor | 10 | | child, there shall be a rebuttable presumption that | 11 | | awarding
temporary legal custody to respondent would not be | 12 | | in the
child's best interest.
| 13 | | (7) Visitation. Determine the
visitation rights, if | 14 | | any, of respondent in any case in which the court
awards | 15 | | physical care or temporary legal custody of a minor child | 16 | | to
petitioner. The court shall restrict or deny | 17 | | respondent's visitation with
a minor child if
the court | 18 | | finds that respondent has done or is likely to do any of | 19 | | the
following: (i) abuse or endanger the minor child during | 20 | | visitation; (ii) use the
visitation as an opportunity to | 21 | | abuse or harass petitioner or
petitioner's family or | 22 | | household members; (iii) improperly conceal or
detain the | 23 | | minor child; or (iv) otherwise act in a manner that is not | 24 | | in
the best interests of the minor child. The court shall | 25 | | not be limited by the
standards set forth in Section 607.1 | 26 | | of the Illinois Marriage and
Dissolution of Marriage Act. |
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| 1 | | If the court grants visitation, the order
shall specify | 2 | | dates and times for the visitation to take place or other
| 3 | | specific parameters or conditions that are appropriate. No | 4 | | order for
visitation shall refer merely to the term | 5 | | "reasonable visitation".
| 6 | | Petitioner may deny respondent access to the minor | 7 | | child if, when
respondent arrives for visitation, | 8 | | respondent is under the influence of drugs
or alcohol and | 9 | | constitutes a threat to the safety and well-being of
| 10 | | petitioner or petitioner's minor children or is behaving in | 11 | | a violent or abusive manner.
| 12 | | If necessary to protect any member of petitioner's | 13 | | family or
household from future abuse, respondent shall be | 14 | | prohibited from coming to
petitioner's residence to meet | 15 | | the minor child for visitation, and the
parties shall | 16 | | submit to the court their recommendations for reasonable
| 17 | | alternative arrangements for visitation. A person may be | 18 | | approved to
supervise visitation only after filing an | 19 | | affidavit accepting
that responsibility and acknowledging | 20 | | accountability to the court.
| 21 | | (8) Removal or concealment of minor child.
Prohibit | 22 | | respondent from
removing a minor child from the State or | 23 | | concealing the child within the
State.
| 24 | | (9) Order to appear. Order the respondent to
appear in | 25 | | court, alone
or with a minor child, to prevent abuse, | 26 | | neglect, removal or concealment of
the child, to return the |
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| 1 | | child to the custody or care of the petitioner or
to permit | 2 | | any court-ordered interview or examination of the child or | 3 | | the
respondent.
| 4 | | (10) Possession of personal property. Grant petitioner | 5 | | exclusive
possession of personal property and, if | 6 | | respondent has possession or
control, direct respondent to | 7 | | promptly make it available to petitioner, if:
| 8 | | (i) petitioner, but not respondent, owns the | 9 | | property; or
| 10 | | (ii) the parties own the property jointly; sharing | 11 | | it would risk
abuse of petitioner by respondent or is | 12 | | impracticable; and the balance of
hardships favors | 13 | | temporary possession by petitioner.
| 14 | | If petitioner's sole claim to ownership of the property | 15 | | is that it is
marital property, the court may award | 16 | | petitioner temporary possession
thereof under the | 17 | | standards of subparagraph (ii) of this paragraph only if
a | 18 | | proper proceeding has been filed under the Illinois | 19 | | Marriage and
Dissolution of Marriage Act, as now or | 20 | | hereafter amended.
| 21 | | No order under this provision shall affect title to | 22 | | property.
| 23 | | (11) Protection of property. Forbid the respondent | 24 | | from taking,
transferring, encumbering, concealing, | 25 | | damaging or otherwise disposing of
any real or personal | 26 | | property, except as explicitly authorized by the
court, if:
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| 1 | | (i) petitioner, but not respondent, owns the | 2 | | property; or
| 3 | | (ii) the parties own the property jointly,
and the | 4 | | balance of hardships favors granting this remedy.
| 5 | | If petitioner's sole claim to ownership of the property | 6 | | is that it is
marital property, the court may grant | 7 | | petitioner relief under subparagraph
(ii) of this | 8 | | paragraph only if a proper proceeding has been filed under | 9 | | the
Illinois Marriage and Dissolution of Marriage Act, as | 10 | | now or hereafter amended.
| 11 | | The court may further prohibit respondent from | 12 | | improperly using the
financial or other resources of an | 13 | | aged member of the family or household
for the profit or | 14 | | advantage of respondent or of any other person.
| 15 | | (11.5) Protection of animals. Grant the petitioner the | 16 | | exclusive care, custody, or control of any animal owned, | 17 | | possessed, leased, kept, or held by either the petitioner | 18 | | or the respondent or a minor child residing in the | 19 | | residence or household of either the petitioner or the | 20 | | respondent and order the respondent to stay away from the | 21 | | animal and forbid the respondent from taking, | 22 | | transferring, encumbering, concealing, harming, or | 23 | | otherwise disposing of the animal.
| 24 | | (12) Order for payment of support. Order
respondent to | 25 | | pay temporary
support for the petitioner or any child in | 26 | | the petitioner's care or
custody, when the respondent has a |
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| 1 | | legal obligation to support that person,
in accordance with | 2 | | the Illinois Marriage and Dissolution
of Marriage Act, | 3 | | which shall govern, among other matters, the amount of
| 4 | | support, payment through the clerk and withholding of | 5 | | income to secure
payment. An order for child support may be | 6 | | granted to a petitioner with
lawful physical care or | 7 | | custody of a child, or an order or agreement for
physical | 8 | | care or custody, prior to entry of an order for legal | 9 | | custody.
Such a support order shall expire upon entry of a | 10 | | valid order granting
legal custody to another, unless | 11 | | otherwise provided in the custody order.
| 12 | | (13) Order for payment of losses. Order
respondent to | 13 | | pay petitioner
for losses suffered as a direct result of | 14 | | the abuse. Such losses shall
include, but not be limited | 15 | | to, medical expenses, lost earnings or other
support, | 16 | | repair or replacement of property damaged or taken, | 17 | | reasonable
attorney's fees, court costs and moving or other | 18 | | travel expenses, including
additional reasonable expenses | 19 | | for temporary shelter and restaurant meals.
| 20 | | (i) Losses affecting family needs. If a party is | 21 | | entitled to seek
maintenance, child support or | 22 | | property distribution from the other party
under the | 23 | | Illinois Marriage and Dissolution of Marriage Act, as | 24 | | now or
hereafter amended, the court may order | 25 | | respondent to reimburse petitioner's
actual losses, to | 26 | | the extent that such reimbursement would be |
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| 1 | | "appropriate
temporary relief", as authorized by | 2 | | subsection (a)(3) of
Section 501 of that Act.
| 3 | | (ii) Recovery of expenses. In the case of an | 4 | | improper concealment
or removal of a minor child, the | 5 | | court may order respondent to pay the reasonable
| 6 | | expenses incurred or to be incurred in the search for | 7 | | and recovery of the
minor child, including but not | 8 | | limited to legal fees, court costs, private
| 9 | | investigator fees, and travel costs.
| 10 | | (14) Prohibition of entry. Prohibit the respondent | 11 | | from entering or
remaining in the residence or household | 12 | | while the respondent is under the
influence of alcohol or | 13 | | drugs and constitutes a threat to the safety and
well-being | 14 | | of the petitioner or the petitioner's children.
| 15 | | (14.5) Prohibition of firearm possession. | 16 | | (A) A person who is subject to an existing order of | 17 | | protection, interim order of protection, emergency | 18 | | order of protection, or plenary order of protection, | 19 | | issued under this Code may not lawfully possess weapons | 20 | | under Section 8.2 of the Firearm Owners Identification | 21 | | Card Act. | 22 | | (B) Any firearms in the
possession of the | 23 | | respondent, except as provided in subparagraph (C) of | 24 | | this paragraph (14.5), shall be ordered by the court to | 25 | | be turned
over to a person with a valid Firearm Owner's | 26 | | Identification Card for safekeeping. The court shall |
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| 1 | | issue an order that the respondent's Firearm Owner's | 2 | | Identification Card be turned over to the local law | 3 | | enforcement agency, which in turn shall immediately | 4 | | mail the card to the Department of State Police Firearm | 5 | | Owner's Identification Card Office for safekeeping.
| 6 | | The period of safekeeping shall be for the duration of | 7 | | the order of protection. The firearm or firearms and | 8 | | Firearm Owner's Identification Card, if unexpired, | 9 | | shall at the respondent's request be returned to the | 10 | | respondent at expiration of the order of protection.
| 11 | | (C) If the respondent is a peace officer as defined | 12 | | in Section 2-13 of
the
Criminal Code of 2012, the court | 13 | | shall order that any firearms used by the
respondent in | 14 | | the performance of his or her duties as a
peace officer | 15 | | be surrendered to
the chief law enforcement executive | 16 | | of the agency in which the respondent is
employed, who | 17 | | shall retain the firearms for safekeeping for the | 18 | | duration of the order of protection.
| 19 | | (D) Upon expiration of the period of safekeeping, | 20 | | if the firearms or Firearm Owner's Identification Card | 21 | | cannot be returned to respondent because respondent | 22 | | cannot be located, fails to respond to requests to | 23 | | retrieve the firearms, or is not lawfully eligible to | 24 | | possess a firearm, upon petition from the local law | 25 | | enforcement agency, the court may order the local law | 26 | | enforcement agency to destroy the firearms, use the |
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| 1 | | firearms for training purposes, or for any other | 2 | | application as deemed appropriate by the local law | 3 | | enforcement agency , including a sale at public auction | 4 | | under the provisions of the Law Enforcement | 5 | | Disposition of Property Act ; or that the firearms be | 6 | | turned over to a third party who is lawfully eligible | 7 | | to possess firearms, and who does not reside with | 8 | | respondent.
| 9 | | (15) Prohibition of access to records. If an order of | 10 | | protection
prohibits respondent from having contact with | 11 | | the minor child,
or if petitioner's address is omitted | 12 | | under subsection (b) of
Section 112A-5, or if necessary to | 13 | | prevent abuse or wrongful removal or
concealment of a minor | 14 | | child, the order shall deny respondent access to, and
| 15 | | prohibit respondent from inspecting, obtaining, or | 16 | | attempting to
inspect or obtain, school or any other | 17 | | records of the minor child
who is in the care of | 18 | | petitioner.
| 19 | | (16) Order for payment of shelter services. Order | 20 | | respondent to
reimburse a shelter providing temporary | 21 | | housing and counseling services to
the petitioner for the | 22 | | cost of the services, as certified by the shelter
and | 23 | | deemed reasonable by the court.
| 24 | | (17) Order for injunctive relief. Enter injunctive | 25 | | relief necessary
or appropriate to prevent further abuse of | 26 | | a family or household member or
to effectuate one of the |
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| 1 | | granted remedies, if supported by the balance of
hardships. | 2 | | If the harm to be prevented by the injunction is abuse or | 3 | | any
other harm that one of the remedies listed in | 4 | | paragraphs (1) through (16)
of this subsection is designed | 5 | | to prevent, no further evidence is necessary
to establish | 6 | | that the harm is an irreparable injury.
| 7 | | (c) Relevant factors; findings.
| 8 | | (1) In determining whether to grant a
specific remedy, | 9 | | other than payment of support, the
court shall consider | 10 | | relevant factors, including but not limited to the
| 11 | | following:
| 12 | | (i) the nature, frequency, severity, pattern and | 13 | | consequences of the
respondent's past abuse of the | 14 | | petitioner or any family or household
member, | 15 | | including the concealment of his or her location in | 16 | | order to evade
service of process or notice, and the | 17 | | likelihood of danger of future abuse to
petitioner or
| 18 | | any member of petitioner's or respondent's family or | 19 | | household; and
| 20 | | (ii) the danger that any minor child will be abused | 21 | | or neglected or
improperly removed from the | 22 | | jurisdiction, improperly concealed within the
State or | 23 | | improperly separated from the child's primary | 24 | | caretaker.
| 25 | | (2) In comparing relative hardships resulting to the | 26 | | parties from loss
of possession of the family home, the |
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| 1 | | court shall consider relevant
factors, including but not | 2 | | limited to the following:
| 3 | | (i) availability, accessibility, cost, safety, | 4 | | adequacy, location and other
characteristics of | 5 | | alternate housing for each party and any minor child or
| 6 | | dependent adult in the party's care;
| 7 | | (ii) the effect on the party's employment; and
| 8 | | (iii) the effect on the relationship of the party, | 9 | | and any minor
child or dependent adult in the party's | 10 | | care, to family, school, church
and community.
| 11 | | (3) Subject to the exceptions set forth in paragraph | 12 | | (4) of this
subsection, the court shall make its findings | 13 | | in an official record or in
writing, and shall at a minimum | 14 | | set forth the following:
| 15 | | (i) That the court has considered the applicable | 16 | | relevant factors
described in paragraphs (1) and (2) of | 17 | | this subsection.
| 18 | | (ii) Whether the conduct or actions of respondent, | 19 | | unless
prohibited, will likely cause irreparable harm | 20 | | or continued abuse.
| 21 | | (iii) Whether it is necessary to grant the | 22 | | requested relief in order
to protect petitioner or | 23 | | other alleged abused persons.
| 24 | | (4) For purposes of issuing an ex parte emergency order | 25 | | of protection,
the court, as an alternative to or as a | 26 | | supplement to making the findings
described in paragraphs |
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| 1 | | (c)(3)(i) through (c)(3)(iii) of this subsection, may use
| 2 | | the following procedure:
| 3 | | When a verified petition for an emergency order of | 4 | | protection in
accordance with the requirements of Sections | 5 | | 112A-5 and 112A-17 is
presented to the court, the court | 6 | | shall examine petitioner on oath or
affirmation. An | 7 | | emergency order of protection shall be issued by the court
| 8 | | if it appears from the contents of the petition and the | 9 | | examination of
petitioner that the averments are | 10 | | sufficient to indicate abuse by
respondent and to support | 11 | | the granting of relief under the issuance of the
emergency | 12 | | order of protection.
| 13 | | (5) Never married parties. No rights or | 14 | | responsibilities for a minor
child born outside of marriage | 15 | | attach to a putative father until a father and
child | 16 | | relationship has been established under the Illinois | 17 | | Parentage Act of
1984. Absent such an adjudication, no | 18 | | putative father shall be granted
temporary custody of the | 19 | | minor child, visitation with the minor child, or
physical | 20 | | care
and possession of the minor child, nor shall
an order | 21 | | of payment for support of the minor child be entered.
| 22 | | (d) Balance of hardships; findings. If the court finds that | 23 | | the balance
of hardships does not support the granting of a | 24 | | remedy governed by
paragraph (2), (3), (10), (11), or (16) of
| 25 | | subsection (b) of this Section,
which may require such | 26 | | balancing, the court's findings shall so
indicate and shall |
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| 1 | | include a finding as to whether granting the remedy will
result | 2 | | in hardship to respondent that would substantially outweigh the | 3 | | hardship
to petitioner
from denial of the remedy. The findings | 4 | | shall be an official record or in
writing.
| 5 | | (e) Denial of remedies. Denial of any remedy shall not be | 6 | | based, in
whole or in part, on evidence that:
| 7 | | (1) Respondent has cause for any use of force, unless | 8 | | that cause
satisfies the standards for justifiable use of | 9 | | force provided by Article
7 of the Criminal Code of 2012;
| 10 | | (2) Respondent was voluntarily intoxicated;
| 11 | | (3) Petitioner acted in self-defense or defense of | 12 | | another, provided
that, if petitioner utilized force, such | 13 | | force was justifiable under
Article 7 of the Criminal Code | 14 | | of 2012;
| 15 | | (4) Petitioner did not act in self-defense or defense | 16 | | of another;
| 17 | | (5) Petitioner left the residence or household to avoid | 18 | | further abuse
by respondent;
| 19 | | (6) Petitioner did not leave the residence or household | 20 | | to avoid further
abuse by respondent;
| 21 | | (7) Conduct by any family or household member excused | 22 | | the abuse by
respondent, unless that same conduct would | 23 | | have excused such abuse if the
parties had not been family | 24 | | or household members.
| 25 | | (Source: P.A. 97-158, eff. 1-1-12; 97-1131, eff. 1-1-13; | 26 | | 97-1150, eff. 1-25-13; 98-63, eff. 7-9-13.)
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| 1 | | Section 15. The Illinois Domestic Violence Act of 1986 is | 2 | | amended by changing Section 214 as follows:
| 3 | | (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
| 4 | | Sec. 214. Order of protection; remedies.
| 5 | | (a) Issuance of order. If the court finds that petitioner | 6 | | has been
abused by a family or household member or that | 7 | | petitioner is a high-risk
adult who has been abused, neglected, | 8 | | or exploited, as defined in this Act,
an order of protection | 9 | | prohibiting the abuse, neglect, or exploitation
shall issue; | 10 | | provided that petitioner must also satisfy the requirements of
| 11 | | one of the following Sections, as appropriate: Section 217 on | 12 | | emergency
orders, Section 218 on interim orders, or Section 219 | 13 | | on plenary orders.
Petitioner shall not be denied an order of | 14 | | protection because petitioner or
respondent is a minor. The | 15 | | court, when determining whether or not to issue
an order of | 16 | | protection, shall not require physical manifestations of abuse
| 17 | | on the person of the victim. Modification and extension of | 18 | | prior
orders of protection shall be in accordance with this | 19 | | Act.
| 20 | | (b) Remedies and standards. The remedies to be included in | 21 | | an order of
protection shall be determined in accordance with | 22 | | this Section and one of
the following Sections, as appropriate: | 23 | | Section 217 on emergency orders,
Section 218 on interim orders, | 24 | | and Section 219 on plenary orders. The
remedies listed in this |
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| 1 | | subsection shall be in addition to other civil or
criminal | 2 | | remedies available to petitioner.
| 3 | | (1) Prohibition of abuse, neglect, or exploitation. | 4 | | Prohibit
respondent's harassment, interference with | 5 | | personal liberty, intimidation
of a dependent, physical | 6 | | abuse, or willful deprivation, neglect or
exploitation, as | 7 | | defined in this Act, or stalking of the petitioner, as | 8 | | defined
in Section 12-7.3 of the Criminal Code of 2012, if | 9 | | such abuse, neglect,
exploitation, or stalking has | 10 | | occurred or otherwise appears likely to occur if
not | 11 | | prohibited.
| 12 | | (2) Grant of exclusive possession of residence. | 13 | | Prohibit respondent from
entering or remaining in any | 14 | | residence, household, or premises of the petitioner,
| 15 | | including one owned or leased by respondent, if petitioner | 16 | | has a right to
occupancy thereof. The grant of exclusive | 17 | | possession of the residence, household, or premises shall | 18 | | not
affect title to real property, nor shall the court be | 19 | | limited by the standard
set forth in Section 701 of the | 20 | | Illinois Marriage and Dissolution of Marriage
Act.
| 21 | | (A) Right to occupancy. A party has a right to | 22 | | occupancy of a
residence or household if it is solely | 23 | | or jointly owned or leased by that
party, that party's | 24 | | spouse, a person with a legal duty to support that | 25 | | party or
a minor child in that party's care, or by any | 26 | | person or entity other than the
opposing party that |
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| 1 | | authorizes that party's occupancy (e.g., a domestic
| 2 | | violence shelter). Standards set forth in subparagraph | 3 | | (B) shall not preclude
equitable relief.
| 4 | | (B) Presumption of hardships. If petitioner and | 5 | | respondent
each has the right to occupancy of a | 6 | | residence or household, the court
shall balance (i) the | 7 | | hardships to respondent and any minor child or
| 8 | | dependent adult in respondent's care resulting from | 9 | | entry of this remedy with
(ii) the hardships to | 10 | | petitioner and any minor child or dependent adult in
| 11 | | petitioner's care resulting from continued exposure to | 12 | | the risk of abuse
(should petitioner remain at the | 13 | | residence or household) or from loss of
possession of | 14 | | the residence or household (should petitioner leave to | 15 | | avoid the
risk of abuse). When determining the balance | 16 | | of hardships, the court shall
also take into account | 17 | | the accessibility of the residence or household.
| 18 | | Hardships need not be balanced if respondent does not | 19 | | have a right to
occupancy.
| 20 | | The balance of hardships is presumed to favor | 21 | | possession by
petitioner unless the presumption is | 22 | | rebutted by a preponderance of the
evidence, showing | 23 | | that the hardships to respondent substantially | 24 | | outweigh
the hardships to petitioner and any minor | 25 | | child or dependent adult in
petitioner's care. The | 26 | | court, on the request of petitioner or on its own
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| 1 | | motion, may order respondent to provide suitable, | 2 | | accessible, alternate housing
for petitioner instead | 3 | | of excluding respondent from a mutual residence or
| 4 | | household.
| 5 | | (3) Stay away order and additional prohibitions.
Order | 6 | | respondent to stay away from petitioner or any other person
| 7 | | protected by the order of protection, or prohibit | 8 | | respondent from entering
or remaining present at | 9 | | petitioner's school, place of employment, or other
| 10 | | specified places at times when petitioner is present, or | 11 | | both, if
reasonable, given the balance of hardships. | 12 | | Hardships need not be balanced for
the court to enter a | 13 | | stay away order or prohibit entry if respondent has no
| 14 | | right to enter the premises.
| 15 | | (A) If an order of protection grants petitioner | 16 | | exclusive possession
of the residence, or prohibits | 17 | | respondent from entering the residence,
or orders | 18 | | respondent to stay away from petitioner or other
| 19 | | protected persons, then the court may allow respondent | 20 | | access to the
residence to remove items of clothing and | 21 | | personal adornment
used exclusively by respondent, | 22 | | medications, and other items as the court
directs. The | 23 | | right to access shall be exercised on only one occasion | 24 | | as the
court directs and in the presence of an | 25 | | agreed-upon adult third party or law
enforcement | 26 | | officer.
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| 1 | | (B) When the petitioner and the respondent attend | 2 | | the same public, private, or non-public elementary, | 3 | | middle, or high school, the court when issuing an order | 4 | | of protection and providing relief shall consider the | 5 | | severity of the act, any continuing physical danger or | 6 | | emotional distress to the petitioner, the educational | 7 | | rights guaranteed to the petitioner and respondent | 8 | | under federal and State law, the availability of a | 9 | | transfer of the respondent to another school, a change | 10 | | of placement or a change of program of the respondent, | 11 | | the expense, difficulty, and educational disruption | 12 | | that would be caused by a transfer of the respondent to | 13 | | another school, and any other relevant facts of the | 14 | | case. The court may order that the respondent not | 15 | | attend the public, private, or non-public elementary, | 16 | | middle, or high school attended by the petitioner, | 17 | | order that the respondent accept a change of placement | 18 | | or change of program, as determined by the school | 19 | | district or private or non-public school, or place | 20 | | restrictions on the respondent's movements within the | 21 | | school attended by the petitioner.
The respondent | 22 | | bears the burden of proving by a preponderance of the | 23 | | evidence that a transfer, change of placement, or | 24 | | change of program of the respondent is not available. | 25 | | The respondent also bears the burden of production with | 26 | | respect to the expense, difficulty, and educational |
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| 1 | | disruption that would be caused by a transfer of the | 2 | | respondent to another school. A transfer, change of | 3 | | placement, or change of program is not unavailable to | 4 | | the respondent solely on the ground that the respondent | 5 | | does not agree with the school district's or private or | 6 | | non-public school's transfer, change of placement, or | 7 | | change of program or solely on the ground that the | 8 | | respondent fails or refuses to consent or otherwise | 9 | | does not take an action required to effectuate a | 10 | | transfer, change of placement, or change of program.
| 11 | | When a court orders a respondent to stay away from the | 12 | | public, private, or non-public school attended by the | 13 | | petitioner and the respondent requests a transfer to | 14 | | another attendance center within the respondent's | 15 | | school district or private or non-public school, the | 16 | | school district or private or non-public school shall | 17 | | have sole discretion to determine the attendance | 18 | | center to which the respondent is transferred.
In the | 19 | | event the court order results in a transfer of the | 20 | | minor respondent to another attendance center, a | 21 | | change in the respondent's placement, or a change of | 22 | | the respondent's program, the parents, guardian, or | 23 | | legal custodian of the respondent is responsible for | 24 | | transportation and other costs associated with the | 25 | | transfer or change. | 26 | | (C) The court may order the parents, guardian, or |
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| 1 | | legal custodian of a minor respondent to take certain | 2 | | actions or to refrain from taking certain actions to | 3 | | ensure that the respondent complies with the order. In | 4 | | the event the court orders a transfer of the respondent | 5 | | to another school, the parents, guardian, or legal | 6 | | custodian of the respondent is responsible for | 7 | | transportation and other costs associated with the | 8 | | change of school by the respondent.
| 9 | | (4) Counseling. Require or recommend the respondent to | 10 | | undergo
counseling for a specified duration with a social | 11 | | worker, psychologist,
clinical psychologist, psychiatrist, | 12 | | family service agency, alcohol or
substance abuse program, | 13 | | mental health center guidance counselor, agency
providing | 14 | | services to elders, program designed for domestic violence
| 15 | | abusers or any other guidance service the court deems | 16 | | appropriate. The Court may order the respondent in any | 17 | | intimate partner relationship to report to an Illinois | 18 | | Department of Human Services protocol approved partner | 19 | | abuse intervention program for an assessment and to follow | 20 | | all recommended treatment.
| 21 | | (5) Physical care and possession of the minor child. In | 22 | | order to protect
the minor child from abuse, neglect, or | 23 | | unwarranted separation from the person
who has been the | 24 | | minor child's primary caretaker, or to otherwise protect | 25 | | the
well-being of the minor child, the court may do either | 26 | | or both of the
following: (i) grant petitioner physical |
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| 1 | | care or possession of the minor child,
or both, or (ii) | 2 | | order respondent to return a minor child to, or not remove | 3 | | a
minor child from, the physical care of a parent or person | 4 | | in loco parentis.
| 5 | | If a court finds, after a hearing, that respondent has | 6 | | committed abuse
(as defined in Section 103) of a minor | 7 | | child, there shall be a
rebuttable presumption that | 8 | | awarding physical care to respondent would not
be in the | 9 | | minor child's best interest.
| 10 | | (6) Temporary legal custody. Award temporary legal | 11 | | custody to petitioner
in accordance with this Section, the | 12 | | Illinois Marriage and Dissolution of
Marriage Act, the | 13 | | Illinois Parentage Act of 1984, and this State's Uniform
| 14 | | Child-Custody Jurisdiction and Enforcement Act.
| 15 | | If a court finds, after a hearing, that respondent has | 16 | | committed abuse (as
defined in Section 103) of a minor | 17 | | child, there shall be a rebuttable
presumption that | 18 | | awarding temporary legal custody to respondent would not be | 19 | | in
the child's best interest.
| 20 | | (7) Visitation. Determine the visitation rights, if | 21 | | any, of respondent in
any case in which the court awards | 22 | | physical care or temporary legal custody of
a minor child | 23 | | to petitioner. The court shall restrict or deny | 24 | | respondent's
visitation with a minor child if the court | 25 | | finds that respondent has done or is
likely to do any of | 26 | | the following: (i) abuse or endanger the minor child during
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| 1 | | visitation; (ii) use the visitation as an opportunity to | 2 | | abuse or harass
petitioner or petitioner's family or | 3 | | household members; (iii) improperly
conceal or detain the | 4 | | minor child; or (iv) otherwise act in a manner that is
not | 5 | | in the best interests of the minor child. The court shall | 6 | | not be limited
by the standards set forth in Section 607.1 | 7 | | of the Illinois Marriage and
Dissolution of Marriage Act. | 8 | | If the court grants visitation, the order shall
specify | 9 | | dates and times for the visitation to take place or other | 10 | | specific
parameters or conditions that are appropriate. No | 11 | | order for visitation shall
refer merely to the term | 12 | | "reasonable visitation".
| 13 | | Petitioner may deny respondent access to the minor | 14 | | child if, when
respondent arrives for visitation, | 15 | | respondent is under the influence of drugs
or alcohol and | 16 | | constitutes a threat to the safety and well-being of
| 17 | | petitioner or petitioner's minor children or is behaving in | 18 | | a violent or
abusive manner.
| 19 | | If necessary to protect any member of petitioner's | 20 | | family or
household from future abuse, respondent shall be | 21 | | prohibited from coming to
petitioner's residence to meet | 22 | | the minor child for visitation, and the
parties shall | 23 | | submit to the court their recommendations for reasonable
| 24 | | alternative arrangements for visitation. A person may be | 25 | | approved to
supervise visitation only after filing an | 26 | | affidavit accepting
that responsibility and acknowledging |
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| 1 | | accountability to the court.
| 2 | | (8) Removal or concealment of minor child. Prohibit | 3 | | respondent from
removing a minor child from the State or | 4 | | concealing the child within the State.
| 5 | | (9) Order to appear. Order the respondent to appear in | 6 | | court, alone
or with a minor child, to prevent abuse, | 7 | | neglect, removal or concealment of
the child, to return the | 8 | | child to the custody or care of the petitioner or
to permit | 9 | | any court-ordered interview or examination of the child or | 10 | | the
respondent.
| 11 | | (10) Possession of personal property. Grant petitioner | 12 | | exclusive
possession of personal property and, if | 13 | | respondent has possession or
control, direct respondent to | 14 | | promptly make it available to petitioner, if:
| 15 | | (i) petitioner, but not respondent, owns the | 16 | | property; or
| 17 | | (ii) the parties own the property jointly; sharing | 18 | | it would risk
abuse of petitioner by respondent or is | 19 | | impracticable; and the balance of
hardships favors | 20 | | temporary possession by petitioner.
| 21 | | If petitioner's sole claim to ownership of the property | 22 | | is that it is
marital property, the court may award | 23 | | petitioner temporary possession
thereof under the | 24 | | standards of subparagraph (ii) of this paragraph only if
a | 25 | | proper proceeding has been filed under the Illinois | 26 | | Marriage and
Dissolution of Marriage Act, as now or |
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| 1 | | hereafter amended.
| 2 | | No order under this provision shall affect title to | 3 | | property.
| 4 | | (11) Protection of property. Forbid the respondent | 5 | | from taking,
transferring, encumbering, concealing, | 6 | | damaging or otherwise disposing of
any real or personal | 7 | | property, except as explicitly authorized by the
court, if:
| 8 | | (i) petitioner, but not respondent, owns the | 9 | | property; or
| 10 | | (ii) the parties own the property jointly,
and the | 11 | | balance of hardships favors granting this remedy.
| 12 | | If petitioner's sole claim to ownership of the property | 13 | | is that it is
marital property, the court may grant | 14 | | petitioner relief under subparagraph
(ii) of this | 15 | | paragraph only if a proper proceeding has been filed under | 16 | | the
Illinois Marriage and Dissolution of Marriage Act, as | 17 | | now or hereafter amended.
| 18 | | The court may further prohibit respondent from | 19 | | improperly using the
financial or other resources of an | 20 | | aged member of the family or household
for the profit or | 21 | | advantage of respondent or of any other person.
| 22 | | (11.5) Protection of animals. Grant the petitioner the | 23 | | exclusive care, custody, or control of any animal owned, | 24 | | possessed, leased, kept, or held by either the petitioner | 25 | | or the respondent or a minor child residing in the | 26 | | residence or household of either the petitioner or the |
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| 1 | | respondent and order the respondent to stay away from the | 2 | | animal and forbid the respondent from taking, | 3 | | transferring, encumbering, concealing, harming, or | 4 | | otherwise disposing of the animal.
| 5 | | (12) Order for payment of support. Order respondent to | 6 | | pay temporary
support for the petitioner or any child in | 7 | | the petitioner's care or
custody, when the respondent has a | 8 | | legal obligation to support that person,
in accordance with | 9 | | the Illinois Marriage and Dissolution
of Marriage Act, | 10 | | which shall govern, among other matters, the amount of
| 11 | | support, payment through the clerk and withholding of | 12 | | income to secure
payment. An order for child support may be | 13 | | granted to a petitioner with
lawful physical care or | 14 | | custody of a child, or an order or agreement for
physical | 15 | | care or custody, prior to entry of an order for legal | 16 | | custody.
Such a support order shall expire upon entry of a | 17 | | valid order granting
legal custody to another, unless | 18 | | otherwise provided in the custody order.
| 19 | | (13) Order for payment of losses. Order respondent to | 20 | | pay petitioner for
losses suffered as a direct result of | 21 | | the abuse, neglect, or exploitation.
Such losses shall | 22 | | include, but not be limited to, medical expenses, lost
| 23 | | earnings or other support, repair or replacement of | 24 | | property damaged or taken,
reasonable attorney's fees, | 25 | | court costs and moving or other travel expenses,
including | 26 | | additional reasonable expenses for temporary shelter and |
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| 1 | | restaurant
meals.
| 2 | | (i) Losses affecting family needs. If a party is | 3 | | entitled to seek
maintenance, child support or | 4 | | property distribution from the other party
under the | 5 | | Illinois Marriage and Dissolution of Marriage Act, as | 6 | | now or
hereafter amended, the court may order | 7 | | respondent to reimburse petitioner's
actual losses, to | 8 | | the extent that such reimbursement would be | 9 | | "appropriate
temporary relief", as authorized by | 10 | | subsection (a)(3) of Section 501 of
that Act.
| 11 | | (ii) Recovery of expenses. In the case of an | 12 | | improper concealment
or removal of a minor child, the | 13 | | court may order respondent to pay the
reasonable | 14 | | expenses incurred or to be incurred in the search for | 15 | | and recovery
of the minor child, including but not | 16 | | limited to legal fees, court costs,
private | 17 | | investigator fees, and travel costs.
| 18 | | (14) Prohibition of entry. Prohibit the respondent | 19 | | from entering or
remaining in the residence or household | 20 | | while the respondent is under the
influence of alcohol or | 21 | | drugs and constitutes a threat to the safety and
well-being | 22 | | of the petitioner or the petitioner's children.
| 23 | | (14.5) Prohibition of firearm possession.
| 24 | | (a) Prohibit a respondent against whom an order of | 25 | | protection was issued from possessing any firearms | 26 | | during the duration of the order if the order: |
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| 1 | | (1) was issued after a hearing of which such | 2 | | person received
actual notice, and at which such | 3 | | person had an opportunity to
participate; | 4 | | (2) restrains such person from harassing, | 5 | | stalking, or
threatening an intimate partner of | 6 | | such person or child of such
intimate partner or | 7 | | person, or engaging in other conduct that
would | 8 | | place an intimate partner in reasonable fear of | 9 | | bodily
injury to the partner or child; and | 10 | | (3)(i) includes a finding that such person | 11 | | represents a
credible threat to the physical | 12 | | safety of such intimate partner
or child; or
(ii) | 13 | | by its terms explicitly prohibits the use, | 14 | | attempted
use, or threatened use of physical force | 15 | | against such intimate
partner or child that would | 16 | | reasonably be expected to cause
bodily injury. | 17 | | Any Firearm Owner's Identification Card in the
| 18 | | possession of the respondent, except as provided in | 19 | | subsection (b), shall be ordered by the court to be | 20 | | turned
over to the local law enforcement agency. The | 21 | | local law enforcement agency shall immediately mail | 22 | | the card to the Department of State Police Firearm | 23 | | Owner's Identification Card Office
for safekeeping. | 24 | | The court shall
issue a warrant for seizure of any | 25 | | firearm in the possession of the respondent, to be kept | 26 | | by the local law enforcement agency for safekeeping, |
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| 1 | | except as provided in subsection (b).
The period of | 2 | | safekeeping shall be for the duration of the order of | 3 | | protection. The firearm or firearms and Firearm | 4 | | Owner's Identification Card, if unexpired, shall at | 5 | | the respondent's request, be returned to the | 6 | | respondent at the end
of the order of protection. It is | 7 | | the respondent's responsibility to notify the | 8 | | Department of State Police Firearm Owner's | 9 | | Identification Card Office.
| 10 | | (b) If the respondent is a peace officer as defined | 11 | | in Section 2-13 of
the
Criminal Code of 2012, the court | 12 | | shall order that any firearms used by the
respondent in | 13 | | the performance of his or her duties as a
peace officer | 14 | | be surrendered to
the chief law enforcement executive | 15 | | of the agency in which the respondent is
employed, who | 16 | | shall retain the firearms for safekeeping for the | 17 | | duration of the order of protection.
| 18 | | (c) Upon expiration of the period of safekeeping, | 19 | | if the firearms or Firearm Owner's Identification Card | 20 | | cannot be returned to respondent because respondent | 21 | | cannot be located, fails to respond to requests to | 22 | | retrieve the firearms, or is not lawfully eligible to | 23 | | possess a firearm, upon petition from the local law | 24 | | enforcement agency, the court may order the local law | 25 | | enforcement agency to destroy the firearms, use the | 26 | | firearms for training purposes, or for any other |
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| 1 | | application as deemed appropriate by the local law | 2 | | enforcement agency , including a sale at public auction | 3 | | under the provisions of the Law Enforcement | 4 | | Disposition of Property Act ; or that the firearms be | 5 | | turned over to a third party who is lawfully eligible | 6 | | to possess firearms, and who does not reside with | 7 | | respondent.
| 8 | | (15) Prohibition of access to records. If an order of | 9 | | protection
prohibits respondent from having contact with | 10 | | the minor child,
or if petitioner's address is omitted | 11 | | under subsection (b) of
Section 203, or if necessary to | 12 | | prevent abuse or wrongful removal or
concealment of a minor | 13 | | child, the order shall deny respondent access to, and
| 14 | | prohibit respondent from inspecting, obtaining, or | 15 | | attempting to
inspect or obtain, school or any other | 16 | | records of the minor child
who is in the care of | 17 | | petitioner.
| 18 | | (16) Order for payment of shelter services. Order | 19 | | respondent to
reimburse a shelter providing temporary | 20 | | housing and counseling services to
the petitioner for the | 21 | | cost of the services, as certified by the shelter
and | 22 | | deemed reasonable by the court.
| 23 | | (17) Order for injunctive relief. Enter injunctive | 24 | | relief necessary
or appropriate to prevent further abuse of | 25 | | a family or household member
or further abuse, neglect, or | 26 | | exploitation of a high-risk adult with
disabilities or to |
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| 1 | | effectuate one of the granted remedies, if supported by the
| 2 | | balance of hardships. If the harm to be prevented by the | 3 | | injunction is abuse
or any other harm that one of the | 4 | | remedies listed in paragraphs (1) through
(16) of this | 5 | | subsection is designed to prevent, no further evidence is
| 6 | | necessary that the harm is an irreparable injury.
| 7 | | (c) Relevant factors; findings.
| 8 | | (1) In determining whether to grant a specific remedy, | 9 | | other than
payment of support, the court shall consider
| 10 | | relevant factors, including but not limited to the | 11 | | following:
| 12 | | (i) the nature, frequency, severity, pattern and | 13 | | consequences of the
respondent's past abuse, neglect | 14 | | or exploitation of the petitioner or
any family or | 15 | | household member, including the concealment of his or | 16 | | her
location in order to evade service of process or | 17 | | notice, and the likelihood of
danger of future abuse, | 18 | | neglect, or exploitation to petitioner or any member of
| 19 | | petitioner's or respondent's family or household; and
| 20 | | (ii) the danger that any minor child will be abused | 21 | | or neglected or
improperly removed from the | 22 | | jurisdiction, improperly concealed within the
State or | 23 | | improperly separated from the child's primary | 24 | | caretaker.
| 25 | | (2) In comparing relative hardships resulting to the | 26 | | parties from loss
of possession of the family home, the |
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| 1 | | court shall consider relevant
factors, including but not | 2 | | limited to the following:
| 3 | | (i) availability, accessibility, cost, safety, | 4 | | adequacy, location and
other characteristics of | 5 | | alternate housing for each party and any minor child
or | 6 | | dependent adult in the party's care;
| 7 | | (ii) the effect on the party's employment; and
| 8 | | (iii) the effect on the relationship of the party, | 9 | | and any minor
child or dependent adult in the party's | 10 | | care, to family, school, church
and community.
| 11 | | (3) Subject to the exceptions set forth in paragraph | 12 | | (4) of this
subsection, the court shall make its findings | 13 | | in an official record or in
writing, and shall at a minimum | 14 | | set forth the following:
| 15 | | (i) That the court has considered the applicable | 16 | | relevant factors
described in paragraphs (1) and (2) of | 17 | | this subsection.
| 18 | | (ii) Whether the conduct or actions of respondent, | 19 | | unless
prohibited, will likely cause irreparable harm | 20 | | or continued abuse.
| 21 | | (iii) Whether it is necessary to grant the | 22 | | requested relief in order
to protect petitioner or | 23 | | other alleged abused persons.
| 24 | | (4) For purposes of issuing an ex parte emergency order | 25 | | of protection,
the court, as an alternative to or as a | 26 | | supplement to making the findings
described in paragraphs |
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| 1 | | (c)(3)(i) through (c)(3)(iii) of this subsection, may
use | 2 | | the following procedure:
| 3 | | When a verified petition for an emergency order of | 4 | | protection in
accordance with the requirements of Sections | 5 | | 203 and 217 is
presented to the court, the court shall | 6 | | examine petitioner on oath or
affirmation. An emergency | 7 | | order of protection shall be issued by the court
if it | 8 | | appears from the contents of the petition and the | 9 | | examination of
petitioner that the averments are | 10 | | sufficient to indicate abuse by
respondent and to support | 11 | | the granting of relief under the issuance of the
emergency | 12 | | order of protection.
| 13 | | (5) Never married parties. No rights or | 14 | | responsibilities for a minor
child born outside of marriage | 15 | | attach to a putative father until a father and
child | 16 | | relationship has been established under the Illinois | 17 | | Parentage Act of
1984, the Illinois Public Aid Code, | 18 | | Section 12 of the Vital Records Act, the
Juvenile Court Act | 19 | | of 1987, the Probate Act of 1985, the Revised Uniform
| 20 | | Reciprocal Enforcement of Support Act, the Uniform | 21 | | Interstate Family Support
Act, the Expedited Child Support | 22 | | Act of 1990, any judicial, administrative, or
other act of | 23 | | another state or territory, any other Illinois statute, or | 24 | | by any
foreign nation establishing the father and child | 25 | | relationship, any other
proceeding substantially in | 26 | | conformity with the Personal Responsibility and
Work |
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| 1 | | Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), | 2 | | or where both
parties appeared in open court or at an | 3 | | administrative hearing acknowledging
under
oath or | 4 | | admitting by affirmation the existence of a father and | 5 | | child
relationship.
Absent such an adjudication, finding, | 6 | | or acknowledgement, no putative
father shall be granted
| 7 | | temporary custody of the minor child, visitation with the | 8 | | minor child, or
physical care and possession of the minor | 9 | | child, nor shall an order of payment
for support of the | 10 | | minor child be entered.
| 11 | | (d) Balance of hardships; findings. If the court finds that | 12 | | the balance
of hardships does not support the granting of a | 13 | | remedy governed by
paragraph (2), (3), (10), (11), or (16) of | 14 | | subsection (b) of this Section,
which may require such | 15 | | balancing, the court's findings shall so
indicate and shall | 16 | | include a finding as to whether granting the remedy will
result | 17 | | in hardship to respondent that would substantially outweigh the | 18 | | hardship
to petitioner from denial of the remedy. The findings | 19 | | shall be an official
record or in writing.
| 20 | | (e) Denial of remedies. Denial of any remedy shall not be | 21 | | based, in
whole or in part, on evidence that:
| 22 | | (1) Respondent has cause for any use of force, unless | 23 | | that cause
satisfies the standards for justifiable use of | 24 | | force provided by Article
7 of the Criminal Code of 2012;
| 25 | | (2) Respondent was voluntarily intoxicated;
| 26 | | (3) Petitioner acted in self-defense or defense of |
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| 1 | | another, provided
that, if petitioner utilized force, such | 2 | | force was justifiable under
Article 7 of the Criminal Code | 3 | | of 2012;
| 4 | | (4) Petitioner did not act in self-defense or defense | 5 | | of another;
| 6 | | (5) Petitioner left the residence or household to avoid | 7 | | further abuse,
neglect, or exploitation by respondent;
| 8 | | (6) Petitioner did not leave the residence or household | 9 | | to avoid further
abuse, neglect, or exploitation by | 10 | | respondent;
| 11 | | (7) Conduct by any family or household member excused | 12 | | the abuse,
neglect, or exploitation by respondent, unless | 13 | | that same conduct would have
excused such abuse, neglect, | 14 | | or exploitation if the parties had not been
family or | 15 | | household members.
| 16 | | (Source: P.A. 96-701, eff. 1-1-10; 96-1239, eff. 1-1-11; | 17 | | 97-158, eff. 1-1-12; 97-294, eff. 1-1-12; 97-813, eff. 7-13-12; | 18 | | 97-1131, eff. 1-1-13; 97-1150, eff. 1-25-13.)
| 19 | | Section 20. The Law Enforcement Disposition of Property Act | 20 | | is amended by changing Section 2 as follows:
| 21 | | (765 ILCS 1030/2) (from Ch. 141, par. 142)
| 22 | | Sec. 2.
(a) Such property believed to be abandoned, lost or | 23 | | stolen or otherwise
illegally possessed shall be retained in | 24 | | custody by the sheriff, chief of
police or other principal |
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| 1 | | official of the law enforcement agency, which
shall make | 2 | | reasonable inquiry and efforts to identify and notify the owner
| 3 | | or other person entitled to possession thereof, and shall | 4 | | return the
property after such person provides reasonable and | 5 | | satisfactory proof of
his ownership or right to possession and | 6 | | reimburses the agency for all
reasonable expenses of such | 7 | | custody.
| 8 | | (b) Weapons that have been confiscated as a result of | 9 | | having been
abandoned or illegally possessed may be
sold at | 10 | | public auction under Section 3 of this Act; or transferred to | 11 | | the Department of State Police for use by the crime
laboratory | 12 | | system, for training purposes, or for any other application as
| 13 | | deemed appropriate by the Department, if no legitimate
claim is
| 14 | | made for the confiscated weapon within 6 months of the date of
| 15 | | confiscation, or within 6 months of final court disposition if | 16 | | such
confiscated weapon was used for evidentiary purposes.
| 17 | | (Source: P.A. 85-632.)
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